Thursday, June 26, 2014

Dear Barclays: The Woman Who Took Down Arthur Andersen Is Heading the Criminal Division of the Department of Justice

What she did with AA was obviously prosecutorial overreach but if she went after Barclays with the same death threats I don't think anyone would lament the loss of what is obviously a criminal gang.
From the New York Observer:

Arthur Andersen LLP was Ms. Caldwell’s first target in the wake of the collapse of Enron amid allegations of financial and accounting irregularities and secret-off balance sheet deals and partnerships. Andersen accountants were actually embedded at Enron, and the energy company paid the consulting firm millions in fees every year. Enron changed to mark-to-market accounting, lawful at the time, and was pushing the envelope.

Ms. Caldwell’s task force terrorized Arthur Andersen partner David Duncan with life in prison. Ms. Caldwell would walk into the room, take command and bark at a potential witness: “You’re going to tell us this, this and this (specifying the statements she wanted) or you’re going to be indicted.”

Ms. Caldwell and Mr. Weissmann persuaded Duncan it didn’t matter that he believed his conduct was lawful; it didn’t matter that he was following the policies of corporate counsel, that the accounting rules could be interpreted different ways, or, that Andersen had retained hundreds of thousands of documents—including anything it was supposed to keep. Ms. Caldwell and Mr. Weissmann virtually bludgeoned him into a guilty plea that required his testimony against his firm. Mr. Duncan acquiesced, but all the while maintained that he believed his conduct was lawful.

Ms. Caldwell knew the carnage she would cause. Andersen represented 2,300 publicly traded companies and employed 85,000 people worldwide. So Ms. Caldwell and Mr. Weissmann obtained the indictment, then sealed it for a week while the government worked behind the scenes with the SEC and Andersen’s clients to avoid “upheaval” in the markets from the announcement of the indictment. After all, no publicly traded company could continue doing business with an accounting firm under a criminal indictment.
Ms. Caldwell and Mr. Weissmann’s unprecedented prosecution proceeded on an indictment they had cobbled together from statutes that didn’t apply to Andersen’s conduct—with no “fair warning” to Andersen that its conduct was criminal. They destroyed an entire company when only a few people had any role in the decision-making underlying the problems that could have and should have been dealt with as a civil matter—not criminal. But they made their point: deal with DOJ or die.

Ultimately, the Supreme Court reversed Ms. Caldwell’s well-publicized claim to fame. On behalf of a unanimous court, Chief Justice Rehnquist wrote that it was “shocking how little culpability the jury instructions required.”...MORE